Gujarat High Court
Vedant Mukeshbhai Karshanbhai Rana vs State Of Gujarat on 22 January, 2024
NEUTRAL CITATION
R/SCR.A/924/2024 JUDGMENT DATED: 22/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 924 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VEDANT MUKESHBHAI KARSHANBHAI RANA
Versus
STATE OF GUJARAT
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Appearance:
MR BHAVIN S RAIYANI(3855) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS KRINA CALLA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 22/01/2024
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of Rule for the
respondent-State.
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2. By way of the present petition, the petitioners are seeking
following reliefs :
"A. To allow the present application;
B. To issue a write of mandamus and/or any other
appropriate writ, order or direction quashing and
setting aside the impugned FIR as well as subsequent
proceedings (at Annexure - A) being C. R. No.
11191031240010 of 2024 registered with Shahibaug
Police Station, Ahmedabad.
C. Pending admission and till final hearing and disposal
of the present application, to stay further proceeding in
connection with the impugned FIR being C. R.
No.11191031240010 of 2024 registered with
Shahibaug Police Station, Ahmedabad, and kindly direct
to Shahibaug Police authority "Not to take any coercive
action" against present applicants till final disposal of
present application.
D. To pass any other and further order that may be
through just and proper to this Hon'ble Court."
3. Heard learned advocates for the respective parties.
4. Learned advocate for the petitioners has submitted that
present petitioners are falsely enroped in the offence and one
cross-complaint has been filed for the offence punishable under
Sections 143, 147, 148, 149, 307, 324, 323, 294(b) and 427 of the
Indian Penal Code read with Section 135(1) of the GP Act of the
Indian Penal Code, 1860, wherein the present petitioners have
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sustained serious injury and even, they are under the treatment
though they are falsely enroped in the offence. It is further
submitted that for the impartial and neutral investigation, the
petitioners have made representation to the Police Inspector,
Shahibaug Police Station, Ahmedabad at Annexure-'C' of the
compilation and he has requested that present petitioner No.1
and his uncle both are falsely enroped in the offence and
arraigned as accused. Hence, he has requested to allow the
present petition. He has further stated that the present
petitioners are victim and complaint is falsely filed with a view to
harass the petitioners and save their skin. Hence, at least, he has
requested to call for the papers of investigation and meanwhile
to protect the accused persons by passing the order of no
coercive action be taken by the police authority.
5. Learned APP has vehemently opposed the present petition
and stated that complaint is registered only on 5 th January, 2024
and investigation is going on and cross-complaint is also filed. It is
further submitted that herein presence of the petitioners is not
in dispute. Hence, she has requested to dismiss the present
petition.
6. Having heard the learned advocates for the respective
parties and having gone through the documents on record, It is
worth to mention that in the present offence, the cross-
complaint being filed by the present accused persons against the
present complainant, wherein the present complainant is
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arraigned as an accused No.5. The impugned complaint is filed
on 05th January, 2024, for the offence punishable under Sections
143, 147, 148, 149, 337, 294(b) and 427 of the Indian Penal Code
read with Section 135(1) of the GP Act and the alleged incident
took place at 16.00 P.M. and information was received at 20.10
P.M., whereas the cross-complaint being FIR
No.11191031240011 of 2024 is filed on the same day, at the
same police Station, for the offence punishable under Sections
143, 147, 148, 149, 307, 324, 323, 294(b) and 427 of the Indian
Penal Code read with Section 135(1) of the GP Act and the
alleged incident took place at 16.00 P.M. and information was
received at 21.30 P.M. The cross-complaint is filed subsequent to
earlier impugned complaint being 11191031240010 of 2024.
7. Perusing the complaint and the role attributed to the
present petitioners, it is clearly stated that on 5 th January, 2024
one incident took place at noon i.e. 12.00 P.M. to 12.30 P.M., in
keeping grudge of the said incident, the present incident has
happened and the present accused and his uncle both came at
the spot with knife and sword i.e. with deadly weapons and at
that time, pelting the stone and sister-in-law of the complainant
sustained injury and police came to be informed and during the
said incident, they have also caused the damages to one shop viz.
Bharat Pan Parlour, worth Rs. 12,000/- all accused have come
with deadly weapons in their hand like sword, pipes and sticks.
They have also made an assault by pelting the stone and in this
regard, complaint came to be lodged.
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7.1. Perusing the time and date of occurrence of both the
offences, prima facie and the presence of the petitioners is not in
dispute. Therefore, the false involvement of the petitioners in
the offence is not acceptable. Considering the averments and
allegations made in the cross-complaint, at this stage, now
second contention of the learned advocate for the petitioners is
that, in the impugned complaint, no-one has sustained injury, no-
one has injured and has taken any treatment, whereas in the
cross-complaint, the present petitioners and others are in serious
conditions and at the spot police came and police brought to
them at hospital for the treatment. But these facts are question
of evidence itself. Even, during the trial, it is the duty of the
prosecution to explain the injury to the accused, hence, no
further discussion is required at this preliminary stage of
investigation as complaint is filed only on 5 th January, 2024 and
petitioners have approached this Court after the 12 days.
7.2. Perusing the complaint, it appears that accused-petitioners
are members of unlawful assembly. It would be apposite to refer
the case law and ingredients of unlawful assembly of Section 141
of IPC is considered then the The important ingredients of an
unlawful assembly are the number of persons forming it i.e. five;
and their common object. Common object of the persons
composing that assembly could be formed on the spur of the
moment and does not require prior deliberations. The course of
conduct adopted by the members of such assembly; their
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behaviour before, during, and after the incident; and the arms
carried by them are a few basic and relevant factors to determine
the common object. In this regard, reference is required to be
madei in case of Manjit Singh v. State of Punjab, (2019) 8 SCC
529."
7.3. Further, It would be apposite to refer Sections 143, 147,
148, 149, 337, 294(b) and 427 of the Indian Penal Code, under
Section 143, Whoever is a member of an unlawful assembly, shall
be punished with imprisonment of either description for a term
which may extend to six months, or with fine, or with both, under
Section 147, Whoever is guilty of rioting, shall be punished with
imprisonment of either description for a term which may extend
to two years, or with fine, or with both, Section 148, Whoever is
guilty of rioting, being armed with a deadly weapon or with
anything which, used as a weapon of offence, is likely to cause
death, shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or with
both and by Section 149, Every member of unlawful assembly
guilty of offence committed in prosecution of common object : If an
offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed
in prosecution of that object, every person who, at the time of
the committing of that offence, is a member of the same
assembly, is guilty of that offence. Herein case on hand there are
in total 14 accused and they have made an assault and accused
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were member of unlawful assembly with armed deadly weapons
like sword and knife and utters ballad or words, at public place
and endangering life or personal safety of others cause the hurt
by doing rash or negligent act, so offence is under Sections 337
and 294(b) of IPC is also, prima facie, made out from bare reading
and uncontroverted allegations made in the complaint.
Considering the fact that, damage is caused for an amount of
Rs.12,000/-, so offence under Section 427 of IPC is made out.
7.4. Further, perusing the allegations of cross-complaint also
which is relied on by the learned advocate for the petitioners, it
appears that presence of all the witnesses and accused of
present offence is also noticed, meaning thereby, it proves that
the incident took place between the two groups and during the
scuffle, both the parties have sustained injury and damage is
caused to the property. Investigation is at preliminary stage,
presence of petitioners is also not in dispute and at that event,
even the same serious of facts / offence, damage is caused and
once it is proved. Considering the fact that petitioners were
members of the unlawful assembly and armed with the deadly
weapons. It is alleged that they have made an assault to the
complainant, the said fact is a question of investigation and after
the investigation, if Investigating Officer collected the evidence
and to suggest that either petitioners or the accused of the
cross-complaint, who were aggressor, it is the question of the
investigation. This is a very premature and nascent stage to
decide and come to the conclusion in absence of any of the
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material. Merely relied on the complaint that the present
petitioners are not involved in the present offence as present
accused are also facing charge in the aid of Section 149 of the
Indian Penal Code, 1860 also and once role attributed to the
present petitioners is prima facie appeared and their involvement
is revealed. So far as other defence of cross-complaint is
concerned, is itself is a question of the evidence and while
exercising the powers under Section 482 Cr.P.C., the Court should
not gone into defence raised by the accused persons and shall
not hold mini trial.
8. Further reference is required to be made to the judgment
of the Apex Court in case of Rajeev Kourav v. Baisahab reported
in (2020) 3 SCC 317, it is observed that the evidence produced by
the accused in his/their defence cannot be looked into by the
court, except in very exceptional circumstances, at the initial
stage of criminal proceedings. The High Court cannot embark
upon the appreciation of evidence while considering the petition
filed under Section 482 of Cr.P.C. for quashing criminal
proceedings. If a prima facie case is made out disclosing the
ingredients of the offence alleged against the accused, the Court
cannot quash a criminal proceeding.
9. Considering the fact that the defence of accused or cross-
complaint can not be looked into at this stage. It would be
apposite to refer the case of Neeharika Infrastruecture Pvt.
Ltd. vs. State of Maharshtra, reported in 2021 SCC Online SC
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315 wherein, the Apex Court has observed that:
"i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate
into a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first information
report that the Court will not permit an investigation
to go on;
iv) The power of quashing should be exercised sparingly
with circumspection, in the 'rarest of rare cases'. (The
rarest of rare cases standard in its application for
quashing under Section 482 Cr.P.C. is not to be
confused with the norm which has been formulated in
the context of the death penalty, as explained
previously by this Court);
v) While examining an FIR/complaint, quashing of
which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or otherwise
of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the
initial stage;
vii) Quashing of a complaint/FIR should be an exception
and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the
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jurisdiction of the police, since the two organs of the
State operate in two specific spheres of activities and
one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) xxx xxxx xxxx xxx xxx xxxxx
xi) Extraordinary and inherent powers of the Court do
not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice;
xii) The first information report is not an encyclopaedia
which must disclose all facts and details relating to the
offence reported. Therefore, when the investigation by
the police is in progress, the court should not go into
the merits of the allegations in the FIR. Police must be
permitted to complete the investigation. It would be
premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process of
law. After investigation, if the investigating officer
finds that there is no substance in the application made
by the complainant, the investigating officer may file
an appropriate report/summary before the learned
Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide,
but conferment of wide power requires the court to be
more cautious. It casts an onerous and more diligent
duty on the court;
xiv) xxxxx xxxxx xxxxx xxx xx
xv) When a prayer for quashing the FIR is made by the
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alleged accused and the court when it exercises the
power under Section 482 Cr.P.C., only has to consider
whether the allegations in the FIR disclose commission
of a cognizable offence or not. The court is not required
to consider on merits whether or not the merits of the
allegations make out a cognizable offence and the
court has to permit the investigating agency/police to
investigate the allegations in the FIR;"
10. Further, reference is required to be made to judgment
passed by the Apex Court in the case of Amit Kapoor v. Ramesh
Chandra, reported in 2012 9 SCC 460 online wherein the Apex
Court had held as under:
"27.1. Though there are no limits of the powers of
the Court under Section 482 of the Code but the more
the power, the more due care and caution is to be
exercised in invoking these powers. The power of
quashing criminal proceedings, particularly, the charge
framed in terms of Section 228 of the Code should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are
so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and
where the basic ingredients of a criminal offence are
not satisfied then the Court may interfere.
xxxxx xxxxx xxxxx xxxx xxxxxxx
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27.8. Where the allegations made and as they
appeared from the record and documents annexed
therewith to predominantly give rise and constitute a
'civil wrong' with no 'element of criminality' and does
not satisfy the basic ingredients of a criminal offence,
the Court may be justified in quashing the charge. Even
in such cases, the Court would not embark upon the
critical analysis of the evidence.
"27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the
case would end in a conviction, the Court is concerned
primarily with the allegations taken as a whole
whether they will constitute an offence and, if so, is it
an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called
upon to hold a full- fledged enquiry or to appreciate
evidence collected by the investigating agencies to find
out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and
also amount to an offence, merely because a civil claim
is maintainable, does not mean that a criminal
complaint cannot be maintained.
xxxxx xxxxx xxxxx xxxx
27.13. Quashing of a charge is an exception to the
rule of continuous prosecution. Where the offence is
even broadly satisfied, the Court should be more
inclined to permit continuation of prosecution rather
than its quashing at that initial stage. The Court is not
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expected to marshal the records with a view to decide
admissibility and reliability of the documents or records
but is an opinion formed prima facie."
11. Further, in the case of Ramveer Upadhyay and Anr. vs.
State of U.P. and Anr. reported in 2022 OnLine SC 484, it is
observed and held by the Apex Court that the High Court, while
exercising jurisdiction under Section 482 of the Cr.P.C, would not
ordinarily embark upon an enquiry into whether the evidence is
reliable or not or whether there is reasonable possibility that the
accusation would not be sustained and scuttled the investigation
at very preliminary stage as complaint is filed on 5th January,
2024 approach this Court on 17.01.2024.
12. Considering the aforesaid conspectus facts, and settled
position of law, the Court is unable to come any conclusion that
the offence is not made out and complaint is filed only with a
view to harass the petitioners and ulterior motive. Therefore, the
petition stands dismissed at admission stage. Observations made
herein above are tentative in nature and will not cause any
prejudice to either party at the trial. No case is made out to
entertain the present petition. Rule is discharged.
Direct service is permitted.
Sd/-
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
